Whether or not an intern is paid is usually a deciding factor in considering hiring one. While many internships are not paid, labor laws usually allow the intern to work for college credit. However, there are restrictions to this exception. An internship must abide by specific criteria in order to be exempt from the Minimum Wage Act and Orders, which outlines New York’s laws regarding pay and overtime. In order to be exempt from this law, an intern cannot be considered an employee and an employment relationship cannot exist between the for-profit business and the intern. It can be determined that an employment relationship does not exist if the relationship meets all of the following criteria:
- The training must replicate that provided in an educational program.This means that the internship program must be designed to build upon classroom experience and teaches skills that are useful in other jobs, rather than those specific to that employer’s operation. An intern cannot perform the routine duties of the business on a regular basis and the business should not depend on the intern’s work. In addition, the intern’s duties cannot consist solely of productive work like filing or other clerical work, but rather helps them gain new skills or better work habits that enhance his or her education
- The training must be primarily for the benefit of the intern.Any benefit to the employer must be as a result of the benefit to the intern. Academic credit for the work completed as an intern can be considered proof of benefit to the intern. Furthermore, these tasks assigned and skills learned must not be of exclusive use to the business, but must be able to be used in the field generally.
- The intern cannot take the place of regular employees and must work under close supervision.This supervisor must be someone knowledgeable and experienced in the field that he or she is teaching and must assign tasks relevant to the intern’s studies and career goals. They cannot assign tasks to an intern that they do not know how to complete themselves. In some cases, employers have hired interns as a way to essentially save money, because they do not have to pay them like they would a regular employee, so long as they receive academic credit for their services. Interns are considered employees if the company would need to hire additional employees or require current employees to work more hours to complete the interns’ work.
Before an intern begins at your business, it is also important to note that he or she must be informed of the fact that he or she is not considered an employee and will not receive any payment for consideration for minimum wage purposes. In advertisements or job postings, it must be clear that the position is for the purpose of education or training rather than employment.
Hiring an intern comes with the responsibility of training the student, which may interfere with one’s own work duties and require the employer to donate time and resources for the benefit of the intern. Remember that you are not required to hire interns, but if you do, their training must fulfill certain academic purposes rather than duties associated with your business.
If your employer has failed to abide by any of the aforementioned criteria as an intern or other employee, it is crucial that you speak to an experienced employment attorney who can help you receive the compensation you deserve. For 38 years, Steven Mitchell Sack, the employee’s lawyer, has been successful in handling employment law cases and may be able to help ensure your rights as an employee. For more information or to schedule a consultation, please call (917) 371-8000.